Going Hostile
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Party's Over
While British candy producer Cadbury rejected a hostile $17 billion takeover offer from America’s Kraft this week, it does not have history on its side.
In recent years, changes in laws and an absence of buyers in today’s market have made it easier for buyers to prevail in hostile takeovers.
“We advise clients that if there is a hostile attempt, the odds are pretty good you’ll be sold, maybe not to that company and most definitely not at the initial price, but once a company is in play, it’s very hard to come out of that as a standalone company,” says Marilyn Sonnie, a partner at law firm Jones Day who specializes in mergers and corporate governance. Frequently, Sonnie says, companies trying to avoid a hostile takeover end up in the arms of a white knight, a company more amenable to the takeover target’s needs.
Sonnie says that is likely a result of shareholder pressure in recent years. Activists such as Carl Icahn have put pressure on management to defer to the interests of shareholders. “The courts aren’t going to let you resist forever and at any price,” she says.
According to Sonnie, it’s harder for companies to resist a determined takeover attempt. “A lot of the traditional takeover defenses have been diluted to a great extent,” she says. “Most of the takeover defenses that are permissible are ways to gain bargaining power, not to completely block it.”
For example, she said one common takeover defense was to have board members serve staggered terms so that the entire board can’t be replaced all at once. Under shareholder pressure, many companies now make all directors stand for election each year. Many so-called poison-pill defenses have been curtailed, such as requiring a supermajority of votes to approve a merger or replace directors. That won’t help Cadbury because poison-pill defenses are not generally allowed in the U.K.
Corporate buyers also have more leverage now because there are fewer players. “The buyer is now in the driver’s seat,” says Roger Aguinaldo, CEO of M&A Advisor, an organization that facilitates connections between players in the mergers and acquisition business. In fact, there have not been many takeovers at all this year, in large part because financial players like private equity firms have stayed on the sidelines because of the lack of available financing. According to Dealogic, the Kraft-Cadbury merger would be the largest hostile takeover of the year after a British attempt to acquire miner Anglo American plc was withdrawn.
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